By Mike Maharrey
A bill prefiled in the Oklahoma Senate would ban the warrantless collection of electronic data and the use of “stingrays” to track the location of phones and sweep up electronic communications in most situations. The passage of the bill would not only protect privacy in the Sooner State, but it would also hinder one aspect of the federal surveillance state.
Sen. Nathan Dahm (R) filed Senate Bill 35 (SB35) for introduction on Feb. 6, 2023. The legislation would prohibit law enforcement agencies from obtaining the metadata, stored data, or transmitted data of an electronic device without a court order in most situations.
Passage of SB35 would help block the use of cell site simulators, known as “stingrays.” These devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower, allowing law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or electronic device.
Under the proposed law, police would have to get a probable cause warrant or a wiretap order before accessing an electronic device “by means of physical interaction or electronic communication with the device.” This would include using a stingray to access a device. SB35 would allow exceptions to the warrant requirement with the specific consent of the owner or possessor of the electronic device, if the device is lost or stolen, or in the event of an emergency involving danger of death or serious physical injury. If police gathered data under the emergency exception, they would still be required to get a warrant within three days. If they failed to obtain a warrant, they would be required to immediately destroy all information.
The legislation would require police to get a warrant or a wiretap order, before obtaining data from a third party or a service provider. This would include actual communication content such as phone conversations, text messages and email, location information and other metadata such as IP addresses pertaining to a person or device participating in the communication. It would also allow police to get a subpoena provided that the information is not sought for the purpose of investigating or prosecuting a criminal offense
Warrants issued under the proposed law would require that any information incidentally gathered on individuals not named in the warrant be sealed and not subject to further review, use or disclosure without a court order.
A service provider could still share information voluntarily under the law. Law enforcement would have to destroy such information within 90 days unless it gets the consent of the owner or a court order.
SB35 includes provisions allowing for the suppression of any data or information gathered in violation of the law or the Fourth Amendment.
IMPACT ON FEDERAL SURVEILLANCE PROGRAMS
The federal government funds the vast majority of state and local stingray programs, attaching one important condition. The feds require agencies acquiring the technology to sign non-disclosure agreements (NDA). This throws a giant shroud over the program, even preventing judges, prosecutors and defense attorneys from getting information about the use of stingrays in court. The feds actually instruct prosecutors to withdraw evidence if judges or legislators press for information. As the Baltimore Sun reported in April 2015, a Baltimore detective refused to answer questions on the stand during a trial, citing a federal non-disclosure agreement.
Defense attorney Joshua Insley asked Cabreja about the agreement.
“Does this document instruct you to withhold evidence from the state’s attorney and Circuit Court, even upon court order to produce?” he asked.
“Yes,” Cabreja said.
As privacysos.org put it, “The FBI would rather police officers and prosecutors let ‘criminals’ go than face a possible scenario where a defendant brings a Fourth Amendment challenge to warrantless stingray spying.”
A Deleware State Police NDA with the Harris Corporation obtained by the ACLU reveals just how much secrecy surrounds stingray surveillance. The ACLU summed up the NDA.
The agreement, signed by a state police detective in 2010, stated that officers could not “discuss, publish, release or disclose any information pertaining to the (cell phone tracking) products” to the general public, to companies, to other governmental agencies, or even to other officers who do not have a “need to know.” A letter attached to the agreement, and signed by Harris Corp.’s account manager, said police are not permitted to talk about the devices with “elected officials.” “Stealth, quiet approach and skilled execution are the glue that transforms weapons and technology investments into capabilities and results,” Harris Corp.’s Michael E. Dillon said in the letter. “Only officers with arrest authority are permitted to use them (Stingrays) or have knowledge of how they work.”
Harris cited federal law for the conditions in the agreement, which it stated is similar to other “intelligence oriented aspects of your operations.”
The experience of a Pinellas County, Florida, man further highlights the shroud of secrecy around the use of stingray devices, along with the potential for abuse of power inherent in America’s law enforcement community.
The feds sell the technology in the name of “anti-terrorism” efforts. With non-disclosure agreements in place, most police departments refuse to release any information on the use of stingrays. But information obtained from the Tacoma Police Department revealed that it uses the technology primarily for routine criminal investigations.
Some privacy advocates argue that stingray use can never happen within the parameters of the Fourth Amendment because the technology necessarily connects to every electronic device within range, not just the one held by the target. And the information collected by these devices undoubtedly ends up in federal databases.
The feds can share and tap into vast amounts of information gathered at the state and local level through fusion centers and a system known as the “information sharing environment” or ISE. In other words, stingrays create the potential for the federal government to track the movement of millions of Americans with no warrant, no probable cause, and without the people even knowing it.
Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”
Fusion centers operate within the broader ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.
The federal government encourages and funds stingrays at the state and local level across the U.S., thereby undoubtedly gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on stingray use, state and local governments limit the data available that the feds can access.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. The enactment of laws limiting or prohibiting the use of stingrays strikes a major blow to the surveillance state and would be a win for privacy.
SB35 will be officially introduced when the Oklahoma legislature convenes on Feb. 6. At that time, it will be referred to a committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.